Melvin Brown v. The State of Texas--Appeal from 409th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

MELVIN BROWN,

Appellant,

v.

THE STATE OF TEXAS,

Appellee.

No. 08-03-00058-CR

Appeal from the

409th District Court

of El Paso County, Texas

(TC# 20020D01745)

MEMORANDUM OPINION

Melvin Brown appeals his conviction for assault of a public servant. Appellant was found guilty by a jury and sentenced to twenty-five years in the Texas Department of Criminal Justice enhanced with two prior felonies. We affirm the judgment of the trial court.

I. SUMMARY OF THE EVIDENCE

On March 31, 2002, Officer Gerardo Martinez was working at the El Paso County Jail Annex in Pod 500. Martinez was working the cell block floors and made visual checks of the inmates every hour. During one of his visual checks, he saw Appellant across the yellow line in the day room around the door where inmates were not allowed. Appellant was stooped over looking through the key hole communicating with an inmate on the other side of the wall. Further, it looked like Appellant was pushing something through the door. Martinez looked on the other side of the wall and saw the other inmate with contraband in his hand. The contraband turned out to be envelopes with stamps on them containing a piece of paper in code. Martinez first secured the inmate on the other side and retrieved the contraband and then entered the area where Appellant was located. Appellant was moving away from the yellow line, and Martinez told Appellant to go to his cell. Appellant refused and instead sat down at a table. Martinez told Appellant several times to go to his cell, and Appellant became agitated and was cursing and yelling. Martinez then signaled the guard station officer to get assistance. Officer Steve Porras then arrived from neighboring Pod 600. At this time, Appellant continued to refuse to go to his cell. Porras told Appellant to make it easy on himself by going to his cell. After several minutes, Appellant decided to walk to his cell. During his walk, Appellant was making sudden movements, acting violent, and his hand gestures were not normal. Appellant was sticking his chest down, cocking his arms back as if he was going to assault the officers, and cursing. Porras also characterized Appellant s demeanor as angry, upset, and aggressive. Appellant would stop, turn around, and call the officers names. Martinez believed that Appellant wanted to assault him. Martinez thus felt that he needed to take control of the situation and walked behind Appellant in an escort position with his hand out. Porras also took a protective stance since Appellant seemed like he was going to become aggressive. Porras testified that Martinez placed his hand on the small of Appellant s back to direct Appellant to his cell and that Appellant turned around and smacked Martinez s arm and said not to touch him.

When Appellant reached his cell, he turned around and grabbed Martinez s shirt with both hands. Martinez then grabbed Appellant by his uniform in the chest area and pushed him back to the bunk. Appellant was punching with both hands in closed fists and kicking. Appellant struck Martinez in the neck, midsection, and left shin. Porras saw Appellant strike Martinez in the ear area, the shoulder, and the side of head. Corporal Robert Flynn, who arrived during the struggle, did not see Appellant strike Martinez. Pictures of Martinez s injuries were admitted at trial. Martinez s injuries to his shin were characterized as abrasions, and Martinez admitted that it was possible that he could have scraped his leg on the concrete bunk. Further, Martinez s uniform was torn. Flynn noticed a red mark on Martinez s neck.

After Appellant started punching and kicking, Porras came in behind Martinez and Martinez pushed Appellant to the bunk. While Martinez and Porras were trying to get Appellant to stop resisting, Appellant continued to kick, punch, and curse. Porras jumped over Martinez and grabbed Appellant s forearms. Martinez then felt it was necessary to strike Appellant, which he did twice in Appellant s midsection. Martinez testified that officers were allowed to strike inmates in self-defense. However, Porras did not see Martinez strike Appellant. Appellant then got one of his arms loose and struck Martinez again, so Porras put all his weight on Appellant and waited for backup. Porras then heard Corporal Flynn in the background yelling for Appellant to cool it. Flynn placed his hand on Appellant s stomach and told Appellant to relax and not to move.

When backup arrived, Appellant froze. Then, Martinez and Porras picked Appellant up and placed him on the floor and handcuffed him. At this time, Corporal Carlos Gutierrez, who was acting sergeant, arrived on the scene. Appellant was laughing hysterically and loud. Appellant said, I know I was wrong for passing stuff, but he didn t have to touch me. If he s going to press charges, I want to press charges, also. Appellant stated that if Martinez was going to write a report it was going to be a good one. Appellant did not appear to be injured and was not complaining of any injuries. The other inmates in their cells began yelling and banging on the doors. Appellant was taken to a holdover cell.

Officer Martinez made three statements: (1) a facility incident report made by Martinez, (2) a complaint report made by Martinez, and (3) a multipurpose report made by Detective Montoya. Martinez s statements provided that Appellant was walking toward his cell, and Martinez put his hand on Appellant, who said don t touch me. Martinez admitted that his statements did not provide that he struck Appellant; however, Martinez stated that officers are allowed to strike inmates in self-defense. Officer Porras made two statements: (1) a statement on the day of the incident to Montoya, and (2) a statement to Detective Jesus Tarango on June 2002. Porras never stated that Appellant grabbed Martinez in either statement. Further, in his first statement, Porras did not provide that Appellant struck Martinez; however, Porras did state that Appellant was swinging and kicking at Martinez. Porras did say that Appellant hit Martinez in his second statement.

II. DISCUSSION

In Issue No. Three, Appellant challenged the legal sufficiency of the evidence to support his conviction for assault of a public servant. Appellant argued that the element of causation of bodily injury was lacking since the State failed to prove that Martinez suffered any bodily injury. Appellant also complained that Martinez did not testify that he suffered any pain.

A. Legal Sufficiency

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref d). The jury may use common sense and apply common knowledge, observation, and experience gained in the ordinary affairs of life when giving effect to the inferences that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 690 (Tex. App.--Tyler 1997, pet. ref d). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.

A person commits the offense of assault on a public servant if he intentionally, knowingly, or recklessly causes bodily injury to a person the actor knows is a public servant while the public servant is lawfully discharging an official duty. Tex. Penal Code Ann. 22.01(b)(1) (Vernon Supp. 2004-05). The indictment against Appellant charged him with intentionally, knowingly, and recklessly causing bodily injury to Officer Gerardo Martinez by (a) striking Martinez in the neck with Appellant s hand, (b) kicking Martinez s body with Appellant s foot, and (c) kicking Martinez s leg with Appellant s foot. The jury charge instructed the jury that the definition of bodily injury was physical pain, illness, or any impairment of physical condition. Tex. Penal Code Ann. 1.07(a)(8) (Vernon Supp. 2004-05).

Viewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found the essential elements of assault on a public servant beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S. Ct. at 2789. First, Officer Martinez testified that Appellant struck him in the neck, his midsection, and his left shin. Martinez characterized the injury to his knee as abrasions. Second, Porras stated that he also saw Appellant strike Martinez in the ear area, his shoulder, and his head. Next, Flynn saw a red mark on Martinez s neck. Last, pictures of Martinez s injuries were admitted at trial.

While no witness directly testified that Martinez suffered pain as a result of being struck and kicked by Appellant, the jury was permitted to draw reasonable inferences from the evidence, including an inference that the victim suffered pain as a result of his injuries. Arzaga v. State, 86 S.W.3d 767, 778 (Tex. App.--El Paso 2002, no pet.) (citing Goodin v. State, 750 S.W.2d 857, 859 (Tex. App.--Corpus Christi 1988, pet. ref d)). Further, the existence of a cut, bruise, or scrape on the body is sufficient evidence of physical pain necessary to establish bodily injury within the meaning of the statute. Id. (citing Bolton v. State, 619 S.W.2d 166, 167 (Tex.Crim.App. 1981) (evidence of cut on arm sufficient to show bodily injury); Goodin, 750 S.W.2d at 859 (rejecting contention that because victim did not testify that bruises and strains hurt or that he felt pain the State failed to prove bodily injury; holding the existence of bruises and muscle strain sufficient to show bodily injury because jury could draw inference from these injuries that victim suffered physical pain)). Thus, the jury was entitled to infer from the testimony of Officers Martinez and Porras and Corporal Flynn that Officer Martinez suffered bodily injury. Accordingly, we find the evidence is legally sufficient to sustain Appellant s conviction for assault of a public servant, and Appellant s Issue No. Three is overruled.

B. Lesser-included Charge of Assault

In Issue No. One, Appellant challenged the trial court s denial of his request for a charge on the lesser-included offense of assault. Appellant argued that there was a scintilla of evidence that at the time Appellant allegedly struck and kicked Martinez that Martinez was not in the lawful discharge of his official duties. Appellant seemed to suggest that Martinez was outside his official duties because he struck Appellant.

To determine whether Appellant was entitled to a charge on the lesser-included offense, we apply a traditional two-prong test. See Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App.), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex. Crim. App. 1981); Bartholomew v. State, 882 S.W.2d 53, 54-55 (Tex. App.--Houston [14th Dist.] 1994, pet. ref d); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex. App.--El Paso 1998, pet. ref d). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Bignall, 887 S.W.2d at 23; Ramirez, 976 S.W.2d at 227. Second, some evidence must exist in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty only of the lesser offense. Ramirez, 976 S.W.2d at 227. The credibility of the evidence and whether it conflicts with other evidence or is controverted may not be considered in making the determination of whether the lesser-included offense should be given. See Gadsden v. State, 915 S.W.2d 620, 622 (Tex. App.--El Paso 1996, no pet.); Barrera v. State, 914 S.W.2d 211, 212 (Tex. App.--El Paso 1996, pet. ref d). Regardless of its strength or weakness, if any evidence raises the issue that the defendant was guilty only of the lesser offense, then the charge must be given. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). An accused is guilty only of a lesser-included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates the crucial element. See Ramirez, 976 S.W.2d at 227. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex. Crim. App. 1997), cert. denied, 523 U.S. 1079, 118 S. Ct. 1526, 140 L. Ed. 2d 677 (1998). There must be some evidence directly germane to the lesser-included offense for the jury to consider before an instruction on the lesser-included offense is warranted. See Ramirez, 976 S.W.2d at 227.

Assault is a lesser-included charge of assault of a public servant. Tex. Penal Code Ann. 22.01(a). Thus, we must determine whether there is evidence in the record from which a jury could have rationally acquitted Appellant of the greater offense while convicting him of the lesser offense. Martinez was employed as a detention officer with the El Paso Sheriff s Office. A public servant is a person elected, selected, appointed, employed, or otherwise designated as . . . an officer, employee, or agent of government. Tex. Penal Code Ann. 1.07(a)(41)(A). Thus, Martinez s employment qualifies him as a public servant. Martinez s duties as detention officer at the jail annex were to make visual checks of the inmates every hour and to enforce facility rules. Inmates in one cell block were not allowed to communicate with inmates in other cellblocks. Further, inmates were not to cross the yellow line near the door in the day room. Inmates also were not to assault or disrespect officers.

Martinez caught Appellant passing contraband to another inmate in another cell block. Then, when Martinez tried to put Appellant in his cell to investigate, Appellant refused and became violent. Thus, Martinez was exercising his official duties by trying to investigate violations of facility rules. Further, while Appellant seemed to argue that Martinez was not discharging his official duties at the time since he struck Appellant, testimony at trial showed that officers were allowed to strike inmates in self-defense. Appellant was swinging at Martinez and kicking him; thus, Martinez was justified in using self-defense. Therefore, the evidence did not show that Martinez was not acting in his official duty, and we find no evidence which would have allowed the jury to rationally find that if Appellant was guilty, then he was only guilty of assault. Ramirez, 976 S.W.2d at 227. Accordingly, Appellant was not warranted an instruction on the lesser-included offense of assault, and Appellant s Issue No. One is overruled.

C. Enhanced Punishment Charge

In Issue No. Two, Appellant challenged the trial court s submission of an enhanced punishment charge. First, Appellant argued that he did not receive personal notice of the enhancement allegation. Second, Appellant asserted that the State could not use his New Mexico conviction as an enhancement since the conviction included a term of probation, and under Texas law, a conviction that includes a term of probation is not admissible to enhance punishment.

1. Enhancement Allegation

At trial, the State read the enhancement provision against Appellant as follows:

Prior to the commission of the primary offense charged in the indictment, the Defendant, on the 16th day of April 1997, in the 65th District Court of El Paso County, Texas in Cause Number 970D00314, was convicted of a felony, to wit, prohibited substance in a correctional facility and said conviction became final prior to the commission of the primary offense alleged in the indictment.

Furthermore, that prior to the primary offense charged in the indictment and the offense in the foregoing paragraph of this notice, the Defendant, on the 12th day of September 1995, in the Third Judicial District Court of Dona Ana County, New Mexico in Cause Number CR-95-71, was convicted of a felony, to wit, residential burglary, and said conviction became final prior to the commission of the primary offense alleged in the indictment and prior to the offense alleged in the foregoing paragraph of this notice.

2. Notice of Enhancement Allegation

Here, the indictment did not include an enhancement paragraph. The State instead filed its notice of enhancement and habitualization on October 11, 2002. The State intended to use Appellant s felony conviction on April 16, 1997 for a prohibited substance in a correctional facility in El Paso County and his felony conviction on September 12, 1995 for residential burglary in Dona Ana County, New Mexico. The Appellant stipulated that his attorney received notice of the enhancement allegation on October 11, 2002. However, Appellant argued that he should have received personal notice.

Voir dire began on October 18, 2002 with trial starting on Monday, October 21, 2002. However, the trial ended in a mistrial since the jury was unable to reach a verdict. Thus, the voir dire for Appellant s second trial began on January 10, 2003 with trial starting on Monday, January 13, 2003.

A criminal defendant is entitled to notice of prior convictions to be used for enhancement. Brooks v. State, 957 S.W.2d 30, 33 (Tex. Crim. App. 1997). However, alleging an enhancement in the indictment is not the only reasonable method of conveying such notice; it is proper for such a notice of intent to seek enhanced punishment based on a prior conviction to be filed with the court and served on the defendant prior to trial. See id. Notice provided ten days before trial is presumptively reasonable. Chimney v. State, 6 S.W.3d 681, 694 (Tex. App.--Waco 1999, pet. ref d) (citing Williams v. State, 481 S.W.2d 119 (Tex. Crim. App. 1972)).

In Lester v. State, No. 2-02-111-CR, 2004 WL 102432, at *1 (Tex. App.--Fort Worth Jan. 22, 2004, no pet.), the Appellant was charged with indecency with a child. On appeal, Appellant asserted that the trial court erred by allowing his sentence to be enhanced without proper pleading or notice. Id., at *3. The indictment did not contain any enhancement allegations. Id. However, the State filed its notice of intent to use a prior felony conviction for enhancement purposes on March 21, 2002. Id. The certificate of service indicated that the document was delivered by fax to Appellant s counsel the day before. Id. Further, Appellant s counsel admitted that his office received the notice on the 20th. Id. The court found that formal notice was filed in the case and that the notice specifically informed Appellant of which prior felony conviction the State intended to use to enhance his punishment. Id. Thus, the court held that the State provided Appellant with proper notice of the offense it intended to use for enhancement. Id., at *4.

In Anderson v. State, No. 12-02-00277-CR, 2004 WL 1202982, at *1 (Tex. App.--Tyler June 2, 2004, pet. ref d), the Appellant was charged with evading arrest while using a vehicle. On appeal, Appellant argued that the State did not give him sufficient legal notice that it was going to use his alleged use of a deadly weapon to enhance his punishment. Id., at *4. The State had sent notice to Appellant s attorney on the day before jury selection. Id. The court found that the State s notice was proper. Id.

Here, Appellant s counsel admitted that he received notice on October 11, 2002. The second trial did not begin until January 13, 2003. Thus, Appellant received proper notice through his attorney of the State s intent to use two prior felony convictions as enhancement for his punishment. Lester, 2004 WL 102432, at *3-4; Anderson, 2004 WL 1202982, at *4. Thus, the trial court did not err in finding the State properly notified the Appellant.

3. Use of New Mexico Conviction

In the New Mexico conviction used for enhancement, Appellant pleaded guilty and was convicted of residential burglary and larceny. On the count of residential burglary, Appellant was sentenced to three years in the New Mexico Department of Corrections and two years parole. On the count of larceny, Appellant was sentenced to eighteen months in the Department of Corrections and one year parole. Appellant was to serve the sentences consecutively. However, the sentence in the larceny count was suspended. Once released, Appellant was to be placed on probation for eighteen months to be served concurrently with his parole.

Only final convictions can be used for enhancement purposes. Ex Parte Murchison, 560 S.W.2d 654, 656 (Tex. Crim. App. 1978). A conviction is not final for enhancement purposes where the imposition of sentence has been suspended and probation granted, unless the State alleges and proves that the probation has been revoked. Id. When a defendant receives regular probation pursuant to Code of Criminal Procedure article 42.12, 3 (now article 42.12, 6), he is convicted and punishment is assessed. Langley, 833 S.W.2d at 142. However, the imposition of that sentence is suspended, and the conviction does not become final for purposes of enhancement unless the probation is revoked. Id. at 143. A successfully served probation is not available for enhancement purposes. Id.

Here, the State was using Appellant s conviction for residential burglary, not larceny. Appellant s conviction for residential burglary was final since Appellant received a sentence of three years in the New Mexico Department of Corrections. Appellant received parole after completion of his sentence. Thus, Appellant s sentence for residential burglary did not include probation and was a final conviction for purposes of enhancement. See Langley, 833 S.W.2d at 142-43. Therefore, the court did not err in admitting Appellant s New Mexico conviction for enhancement. Accordingly, Appellant s Issue No. Two is overruled in its entirety.

Having overruled each of Appellant s issues on review, we affirm the judgment of the trial court.

RICHARD BARAJAS, Chief Justice

February 17, 2005

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

Larsen, J., not participating

(Do Not Publish)